Orissa High Court
Sarat Kumar Prusty vs Bhimasen Prusty on 29 February, 2024
Author: D. Dash
Bench: D. Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. NO.180 OF 2016
In the matter of an Appeal under Section 100 of the Code of
Civil Procedure,1908 assailing the judgment and decree dated
18th January 2016 and 1st February 2016 respectively passed by
the learned Additional District Judge, Nayagarh in R.F.A.
No.38/27 of 2013-10 confirming the judgment and decree dated
18th August 2010 and 31st August 2010 respectively passed by
the learned Civil Judge (Junior Division), Nayagarh in Civil
Suit No.04 of 2008.
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Sarat Kumar Prusty :::: Appellant
-versus-
Bhimasen Prusty :::: Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
======================================================================================= For Appellant - Mr. A. Tripathy, Advocate.
For Respondent - -------------------
CORAM:
MR. JUSTICE D. DASH
Date of Hearing: 26.02.2024 :: Date of Judgment: 29.02.2024 D.Dash,J. The Appellant, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dated 18th January 2016 and 1st February 2016 respectively passed by the learned Additional District Judge, Nayagarh in R.F.A. No.38/27 of 2013-10. Page 1 of 9 RSA No. 180 of 2016
{{ 2 }} The Respondent as the Plaintiff had filed the suit (C.S. No.04 of 2008) for a declaration that the deed of adoption dated 28.11.2007 registered in the office of Sub-Registrar, Nayagarh with regard to the adoption of the Appellant arraigned therein as the Defendant by Sashimani Prusty as null and void and that the Appellant (Defendant) is not the adopted son of Sashimani Prusty.
The suit stood decreed. This Appellant thus having suffered from the same had carried the Appeal under section- 96 of the Code which has also been dismissed. Hence, the present Second Appeal is at the instance of the Appellant who has remained as the unsuccessful Defendant before the Trial Court as well as the First Appellate Court.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.
3. The Plaintiff's case is that Bhikari Prusty and Sashimani Prusty are the related to each other as brother and sister. Father of the Plaintiff is Bhikari Prusty. He died in the year 1987. Sashimani was unmarried. She died on 10.01.2008. The Defendant during the lifetime of Sashimani had rendered some services to her and provided comfort in her living. Accordingly, Sashimani reposed confidence upon the Defendant. When the Page 2 of 9 RSA No. 180 of 2016 {{ 3 }} situation stood thus, the Defendant somehow managed to obtain a registered deed of adoption on 28.11.2007 from that Sashimani stating that she had adopted Defendant as her son. This adoption deed and the status of the Defendant as the adopted son of Sashimani are under challenge in the suit.
The adoption is attacked as being without performance of any giving and taking ceremony nor any other ceremony as prevalent in the locality. It is stated that the Defendant was then aged about 25 years; the age at which the adoption is not permissible. The said deed of adoption is questioned as to have come into existence by practicing fraud. The Plaintiff claims that the after the death of Sashimani so far as her properties are concerned, he is entitled to succeed.
4. The Defendant in her written statement while traversing the plaint averments has stated that Shashimani being unmarried during later part of her life expressed before the mother of the Defendant that she wanted to adopt the Defendant as her son. The mother of the Defendant agreed and accordingly, on 06.06.2004, giving and taking ceremony was performed in accordance with the local custom and in presence of the friends and relatives, Sashimani adopted the Defendant. Since that day, the Defendant remained in the house of the Sashimani, rendered all services to her and enjoyed the landed property. Pursuant to the same, on 28.11.2007, Sashimani Page 3 of 9 RSA No. 180 of 2016 {{ 4 }} executed a deed of acknowledgement of adoption which was registered. The factum of adoption stood admitted in the said document. The deed according to the Defendant was duly and consciously executed by Sashimani and it was scribed under her instruction and the natural mother of the Defendant as well as the Defendant are signatories. It is further stated that Defendant has performed obsequies of Sashimani as her son and accordingly, he succeeded to her property of her death.
It is stated that prior to adoption of the Defendant, way back on 10.07.1975 Sashimani had adopted one Kailash, the natural son of Arjun Mohapatra and registered a deed of adoption on 07.04.1998 had come into being. But said Kailash unfortunately died unmarried. After that, Sashimani adopted the Defendant. It is also stated that as per the prevailing custom in the area it is not impermissible for adoption of a person more than 15 years of age. It is stated that Sashimani being satisfied with the service rendered by the Defendant and his wife has also executed a Will bequeathing all her landed property in favour of the Defendant. The Defendant from the time of adoption had left his parentage home and has been residing in the house of Sashimani.
5. The Trial Court on the above rival pleadings framed in total six (6) issues. Coming to answer the most crucial issue as regards the status of the Defendant as the admitted son of Page 4 of 9 RSA No. 180 of 2016 {{ 5 }} Sashimani as claimed by him which is questioned by the Plaintiff; upon examination of evidence and their evaluation, further taking into account the provisions contained in section- 3(a) read with section-10(iv) of the Hindum Adoption and Maintenance Act, 1956 (for short the HAMA), the finding has been rendered against the Defendant with practically has led to decide the fate of the suit.
6. The Defendant having suffered from the above decision of the Trial Court although carried the First Appeal; the same move has also been unsuccessful.
7. Mr. A. Tripathy learned Counsel for the Appellant submitted that despite the provision of law in the HAMA, the Defendant having pleaded and proved the custom prevailing in the locality as otherwise permitting such deviation with regard to the age of the person being adopted, the Courts below ought not have decided the issue of adoption of the Defendant by Sashimani in the negative. In support of the same, he has relied upon the decision of the Supreme Court in case of Kondiba Rama Papal (Dead) by his heirs & LRs and Others Vrs. Narayan Kondiba Papal; AIR 1991 SC 1180. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.
8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also Page 5 of 9 RSA No. 180 of 2016 {{ 6 }} gone through the plaint and written statement filed by the parties.
9. The admitted factual position stands that the Defendant at the time of so called adoption was more than 15 years of age. He by then was married. The provision of law as contained in section-10 (iv) of the HAMA permits adoption of a boy or girl, when he or she has completed the age of 15 years. But the exception remains that if the custom or usage applicable to the party, so permit the restriction as to the age may not stand on the way of adoption of said persons of overage as valid. The expressions 'custom' and 'usage' have however been defined in the HAMA for the purpose. Section-3(a) of HAMA says that those expression signify any rule which having been continuously and uniformly observed for a longtime and has obtained the force of law among the Hindus in any local area, tribe, community, group or family. In the given case, when the provision of HAMA as contained in section-10(iv) stands on the way of acceptance of the status of the Defendant as the adopted son of Sashimani as per his own case as presented and the deed of adoption on that basis appears to be having no value in the eye of law, in order to get rid over the same, the burden of proof as to the custom and usage as having been observed continuously and uniformly for a longtime as of rule and thus has obtained force of law among the Hindus in the area from Page 6 of 9 RSA No. 180 of 2016 {{ 7 }} which the parties hail, their tribe, community group or family is heavily lies on the Defendant.
10. The pleadings of the Defendant in his written statement are not in tune and detail in support of such exception. The evidence is also not on the score that such custom and usage have been continuously and uniformly observed in the locality or in the family for a longtime as a matter of rule and thereby has taken the force of law. Both the Trial Court as well as the First Appellate Court having gone for detail discussion of the evidence and scrutinized the same from every possible angle have concurrently found the Defendant to have failed to create a case of exception for his adoption as stated to have been made after completion of the age of 15 years to stand.
11. Having carefully gone through the discussion of the evidence as made by the Courts below, this Court is not been able to notice any such infirmity therein much less to say perversity. The Courts below have also taken adverse inference to the case of the Defendant in creating the exception as regards the age of the person to be adopted as prevailing in the locality under the custom and being the usages for non-examination of some elderly persons of the locality or family which does not appear to be unreasonable. It is not found that the Courts below have omitted to take into account any such material evidence as available on record in support of the case of the Defendant or Page 7 of 9 RSA No. 180 of 2016 {{ 8 }} that they have read something extraneous into the evidence which if would have been rightly done the finding against the Defendant would not been given.
The decision cited by the learned Counsel for the Appellant in case of Kondiba Rama Papal (supra) was from the State of Bombay. In so far as that State is concerned despite difference of opinion in various Schools as to the age when a boy may be adopted by judicial recognition, the position stood well settled that a child can be adopted at any age. In this connection, reference has been made to the Mulla's Hindu Law, 14th Edition at page 550 that in the Bombay State a person may be adopted at any age though he may be older than the adopter and though he may be married and have children; the adoption is not invalid although it took place after the thread ceremony of the boy was performed. This custom being in prevalent in the State of Bombay stood judicially recognized. So, it has been said that once the custom has judicially recognized, it is not required to be independently proved in subsequent cases. The reason to me appears to be that once a custom in the locality is recognized judicially for a continuous period of time that takes the place of law being prevalent in the locality which is not the case in our State of Odisha.
11. For the discussion as made above, the said decision is not coming to the aid of the case of the Defendant as here in our Page 8 of 9 RSA No. 180 of 2016 {{ 9 }} State such a custom is not shown to have judicially recognized for a continuous period.
In that view of the matter, the submission of the learned Counsel for the Appellant that there surfaces substantial questions of law for being answered meriting admission of this Appeal cannot be countenanced with.
12. In the result, the Appeal stands dismissed. There shall however be no order as to cost.
(D. Dash), Judge.
Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 05-Mar-2024 12:19:04 Page 9 of 9 RSA No. 180 of 2016